During the time allowed for taking an appeal from judgment of a court of record or during the pendency of such appeal, that court may, on motion, allow testimony to be perpetuated for use in the event of further proceedings before it. The motion shall state the name and address of each proposed deponent, the substance of the deponent's expected testimony, and the reason for perpetuating it. If the court finds such perpetuation is proper to avoid a failure or delay of justice, and the depositions are not sought for discovery, it may order them taken as in rules 1.725 and 1.726. When taken and filed as thus provided, they shall be used and treated as though they had been taken pending the trial of the action.
Rule 1.728.Perpetuating testimony pending appeal
Division VII: Depositions and Perpetuating Testimony · Last amended February 15, 2002 · Last verified July 15, 2026
In one sentenceRule 1.728 lets a trial court, during the appeal window or while an appeal is pending, order testimony perpetuated on motion for use in further proceedings before it, applying the same anti-discovery and failure-of-justice standards as Rule 1.725 and treating the result as though it had been taken during the original trial.
Full Text of Rule 1.728
Plain-English Summary
A case does not stop needing evidence just because judgment has been entered. Rule 1.728 lets the court that rendered judgment allow testimony to be perpetuated during the time allowed for taking an appeal, or while an appeal is pending, so that evidence survives for any further proceedings that might come back before that same court.
The mechanism is a motion, not the affidavit-heavy application that opens a Rule 1.722 proceeding. The motion states the name and address of each proposed deponent, the substance of what that person is expected to say, and the reason perpetuating the testimony now is necessary.
The court applies a familiar standard: it must find that perpetuation is proper to avoid a failure or delay of justice and that the depositions are not sought for discovery, then it can order them taken following the same procedures used under rules 1.725 and 1.726. Once taken and filed, the depositions are used and treated exactly as if they had been taken while the case was still being tried — no separate, weaker category of evidence.
Frequently Asked Questions
When can a court order testimony perpetuated under Rule 1.728?
During the time allowed for taking an appeal from the judgment, or while that appeal is pending, the court that rendered the judgment may, on motion, allow testimony to be perpetuated for use in further proceedings before it.
What has to be in the motion?
Rule 1.728 requires the motion to state the name and address of each proposed deponent, the substance of that deponent's expected testimony, and the reason for perpetuating it.
What must the court find before granting the motion?
The court must find that perpetuation is proper to avoid a failure or delay of justice and that the depositions are not sought for discovery — the same substantive standard Rule 1.725 applies before an action is filed.
How are the depositions taken once the motion is granted?
Rule 1.728 lets the court order them taken following the same procedures set out in rules 1.725 and 1.726, which cover the content of the order and the deadline for filing the depositions.
How is a deposition taken under Rule 1.728 treated once it is filed?
Rule 1.728 states that it is used and treated exactly as though it had been taken while the action was pending trial, so it is not handled as a separate or lesser category of evidence.
Source & verification. Rule text and the Comment are
reproduced verbatim from the Iowa Rules of Civil Procedure, adopted by the
Iowa Supreme Court. Last verified July 15, 2026.
· Official source
Also known as: iowa perpetuate testimony pending appealrule 1.728 iowapreserve testimony after judgment iowadeposition motion during appeal iowa